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In the criminal law, criminal
negligence is one of the three general classes of
mens rea (Latin for "guilty mind") element required to
constitute a conventional as opposed to strict liability offense. It is defined as:

Discussion

To constitute a crime, there must be an
actus reus (Latin for "guilty
act") accompanied by the mens rea (see concurrence). Negligence shows the least level
of culpability, intention being the most serious and
recklessness of intermediate seriousness, overlapping with gross
negligence. The distinction between
recklessness and criminal negligence lies in the presence or
absence of foresight as to the prohibited consequences.
Recklessness is usually described as a 'malfeasance' where the
defendant knowingly exposes another to the risk of injury. The
fault lies in being willing to run the risk. But criminal
negligence is a 'misfeasance or 'nonfeasance' (see omission), where the fault lies in the
failure to foresee and so allow otherwise avoidable dangers to
manifest. In some cases this failure can rise to the
level of willful blindness where the individual intentionally
avoids adverting to the reality of a situation (note that in the
United
States, there may sometimes be a slightly different
interpretation for willful
blindness). The degree of culpability is determined by applying a reasonable person standard. Criminal
negligence becomes "gross" when the failure to foresee involves a
"wanton disregard for human life" (see the discussion in corporate manslaughter).

The test of any mens rea element is always based on an
assessment of whether the accused had foresight of the prohibited
consequences and desired to cause those consequences to occur. The
three types of test are:

subjective where the court attempts to
establish what the accused was actually thinking at the time the
actus reus was caused;

objective where the court imputesmens rea elements on the
basis that a reasonable person
with the same general knowledge and abilities as the accused would
have had those elements; or

hybrid, i.e. the test is both subjective and objective.

The most culpable mens rea elements will have both
foresight and desire on a subjective basis. Negligence arises when,
on a subjective test, an accused has not actually foreseen the
potentially adverse consequences to the planned actions, and has
gone ahead, exposing a particular individual or unknown victim to
the risk of suffering injury or loss. The accused is a social
danger because he or she has endangered the safety of others in
circumstances where the reasonable person would have foreseen the
injury and taken preventive measures. Hence, the test is
hybrid.

What is the reasonable person standard?

This is not a real person but a legal
fiction, an objective yardstick against which to measure the
culpability of real people. For these purposes, the reasonable
person is not an average person: this is not a democratic measure.
To determine the appropriate level of responsibility, the test of
reasonableness has to be directly relevant to the activities being
undertaken by the accused. What the ‘average person’ thinks or
might do would be irrelevant in a case where a doctor is accused of
wrongfully killing a patient during treatment. Hence, there is a
baseline of minimum competence that all are expected to aspire to.
This reasonable person is appropriately informed, capable, aware of
the law, and fair-minded. This standard can never go down, but it
can go up to match the training and abilities of the particular
accused. In testing whether the particular doctor has misdiagnosed
a patient so incompetently that it amounts to a crime, the standard
must be that of the reasonable doctor. Those who hold themselves
out as having particular skills must match the level of performance
expected of people with comparable skills. When engaged in an
activity outside their expertise, such individuals revert to the
ordinary person standard. This is not to deny that ordinary people
might do something extraordinary in certain circumstances, but the
ordinary person as an accused will not be at fault if he or she
does not do that extraordinary thing so long as whatever that
person does or thinks is reasonable in those circumstances.

The more contentious debate has surrounded the issue of whether the
reasonable person should be subjectively matched to the accused in
cases involving children, and
persons with a physical or
mental disability. Young and
inexperienced individuals may very well not foresee what an
adult might foresee, a blind person cannot see
at all, and an autistic person may not relate
to the world as a "normal" person. Cases involving infancy and
mental disorders potentially
invoke excuses to criminal liability because
the accused lack of full capacity, and criminal systems provide an
overlapping set of provisions which can either deal with such
individuals outside the criminal justice system, or if a criminal
trial is unavoidable, mitigate the extent of liability through the
sentencing system following conviction. But those who have ordinary
intellectual capacities are expected to act reasonably given their
physical condition. Thus, a court would ask whether a blind
reasonable person would have set out to do what the particular
blind defendant did. People with physical disabilities rightly wish
to be active members of the community but, if certain types of
activity would endanger others, appropriate precautions must be put
in place to ensure that the risks are reasonable.

Particular examples

United States

Examples of criminally negligent crimes are criminally negligent
homicide and negligent endangerment of a child. Usually the
punishment for criminal negligence,
criminal recklessness, criminal endangerment, wilful blindness and
other related crimes is imprisonment, unless
the criminal is insane (and then in some
cases the sentence is
indeterminate).

English law definition

The leading statement to describe 'criminal negligence' at common
law for the purposes of establishing a test for manslaughter in English law, may
be found in the statement by Lord Hewart CJ in the case of R v
Bateman (1925) 28 Cox's Crim Cas 33:

"In explaining to juries the test which they should
apply to determine whether the negligence, in the particular case,
amounted or did not amount to a crime, judges have used many
epithets, such as ‘culpable’, ‘criminal’, ‘gross’, ‘wicked’,
‘clear’, ‘complete’.

But, whatever epithet be used and whether an epithet be
used or not, in order to establish criminal liability the facts
must be such that, in the opinion of the jury, the negligence of
the accused went beyond a mere matter of compensation between
subjects and showed such disregard for the life and safety of
others as to amount to a crime against the State and conduct
deserving punishment."

For a murder, the mens
rea is that of malice
aforethought, a deliberate and sometimes premeditated killing. But the larger percentage
of deaths result from situations where there is either no intention
to injure another, or only an intention to inflict less serious
injury. The need is therefore to be able to distinguish between
those who happened to be present when another died accidentally or
through misadventure, and those who have contributed to the death
in a way that makes them criminally rather than merely morally responsible. For example, suppose that A,
an expert in kayaking, organises an outing for local children who
are learning the sport. They travel to a large lake but, after an
hour of paddling, they are overtaken by a violent storm and some of
the children drown despite the fact that all are wearing
life-preservers. If all the kayaks, paddles and ancillary equipment
are shown to have been in good condition, the storm had not been
forecast by the meteorological services, and it was reasonable for
these children to undertake this type of outing given their level
of skill, A will not have liability. But if many of the children
were too inexperienced and a storm had been forecast, A might well
be found liable by a jury.